Africa: Adolescents’ right to abortion and contraception

Congratulations and thanks to Godfrey Dalitso Kangaude, Catriona MacLeod, Ernestina Coast, and Tamara Fetters, whose article, “Integrating child rights standards in contraceptive and abortion care for minors in Africa,” suggests that African countries integrate child rights principles in clinical guidelines and protocols to provide high-quality contraceptive and abortion care for minor girls. The article appeared in the Ethical and Legal Issues in Reproductive Health section of the International Journal of Gynecology and Obstetrics. The full text is available online, and we are pleased to circulate the authors’ abstract.

“Integrating child rights standards in contraceptive and abortion care for minors in Africa,” by Godfrey Dalitso Kangaude, Catriona Macleod, Ernestina Coast and Tamara Fetters, in International Journal of Gynecology & Obstetrics 159.3 (December 2022): 998-1004.   Article online.

Abstract: Minor girls in Africa face challenges in accessing high-quality contraceptive and abortion services because laws and policies are not child-friendly. Many countries maintain restrictive laws, policies or hospital practices that make it difficult for minors to access contraception and safe abortion even when the pregnancy would risk their life or health. Further, the clinical guidelines on contraceptive and abortion care are silent, vague or ambiguous regarding minors’ consent. African states should remedy the situation by ensuring that clinical guidelines integrate child rights principles and standards articulated in child rights treaties to enable health providers to facilitate full and unencumbered access to contraceptive and abortion care for minor girls. A sample of clinical guidelines is analyzed to demonstrate the importance of explicit, consistent and unambiguous language about children’s consent to ensure that health care workers provide sexual and reproductive health care in a manner that respects child rights.

Keywords: child rights; contraceptive and abortion care, Convention on the Rights of the Child; African Charter on the Rights and Welfare of the Child; evolving capacities, WHO abortion care guideline

Full text of this article is online here.

RELATED RESOURCE

Ethical and Legal Issues in Reproductive Health, more than 110 concise articles are online here.
__________________________________________________________________________
Contributed by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Blog Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of this blog, then check your email to confirm the subscription.

 

Italy: Hyper-Regulation of Abortion Care

Congratulations and thanks to Dr. Elena Caruso, whose article on “The Hyper-Regulation of Abortion Care in Italy” was recently published in the International Journal of Gynecology and Obstetrics‘ “Ethical and Legal Issues in Reproductive Health” section, edited by Professors Rebecca J. Cook, Bernard M. Dickens and Charles G. Ngwena. The author, Elena Caruso, is an Italian legal scholar who completed a doctorate in Law at Kent University and who now holds an AMTD Waterloo Global Talent Postdoctoral Fellowship at the University of Waterloo in Ontario, Canada. We are pleased to circulate the following abstract of this article, which is now fully available online in both English and Italian:

The Hyper-Regulation of Abortion Care in Italy, by Elena Caruso in International Journal of Gynecology and Obstetrics 163.3 (December 2023):1036-1042.  PDF at Wiley Online.  Italian translation.

ABSTRACT: This paper argues that the current abortion regulation by Law 194/1978 is an inadequate basis for the provision of good quality abortion care and must be reformed. First, the paper explains why Law 194/1978 creates a hyper-regulatory regime that is inconsistent with the best clinical evidence and practices in the field as well as relevant international human rights law, as outlined in the World Health Organization’s (WHO) 2022 Abortion Care Guideline. Second, it highlights gaps between what the law says and what happens in practice, pointing out how the everyday life of Law 194/1978, especially in the practices of gynecologists, is far removed from international standards of quality abortion care and has yet to comply with international human rights law. Third, it sets out some alternative routes to abortion access “outside” Law 194/1978. Finally, it concludes with some suggestions for a change in the practice of gynecology and a call for the reform of Law 194/1978, in favor of a bodily autonomy model of regulation grounded on decriminalization, demedicalization, dehospitalization, and self-management to ensure compliance with the WHO standards and international human rights law.

The entire paper is now freely available in English and Italian: English article PDF.  Italian translation.

RELEVANT RESOURCES:

Law 194 of 1978: an English translation of this Italian law is online here.

The WHO Abortion Care Guideline: Law and Policy–Past, Present and Future,” by Joanna N. Erdman, in International Journal of Gynecology and Obstetrics162.3 (Sept 2023): 1119–1124.   PDF at Wiley Online. 

Abortion Law Decisions webpages, now updated in English and in Spanish.

Ethical and Legal Issues in Reproductive Health – more than 110 other concise articles are online here.
________________________________________________________________________________________
Contributed by: The International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of this blog, then check your email to confirm the subscription.

Mexico: Supreme Court decriminalizes abortion

Congratulations to Leticia Bonifaz Alfonzo and Rosalba Mora Sierra, whose article on the 2023 decriminalization of abortion by the Mexican Supreme Court was recently published in the “Ethical and Legal Issues” section of the International Journal of Gynecology and Obstetrics, and is now freely available. Leticia Bonifaz Alfonzo, a member of the UN CEDAW committee, is affiliated with the National Autonomous University of Mexico (UNAM) in Mexico City. Rosalba Mora Sierra is Director of Access to Justice at the General Unit of Scientific Knowledge and Human Rights, Mexican Supreme Court in Mexico City. The article is now freely available online:

Leticia Bonifaz Alfonzo and Rosalba Mora Sierra, “Decriminalization of Abortion by the Mexican Supreme Court,” International Journal of Gynecology and Obstetrics 165.1 (April 2024): 375–381. 
Article and Abstract Online.  Spanish translation of Abstract by CLACAI .

ABSTRACT: In September 2021, the Mexican Supreme Court issued a decision disallowing any federal or local judicial authority to indict someone for the offense of voluntary or consensual abortion. This decision also declared unconstitutional penalties imposed on medical personnel who facilitate or assist such procedures. Furthermore, the Court decided that limiting access to abortion in cases of rape to a specific time frame was disproportionate. Later on, in September 2023, the Supreme Court confirmed that absolute criminalization of abortion was unconstitutional and declared that the rule supporting criminalization in the Federal Penal Code was without effects. Consequently, healthcare providers who work in public federal health institutions cannot be criminalized for guaranteeing the right to abortion. This article reviews the reasons advanced by the Supreme Court to guarantee the right of reproductive self-determination, as well as the effects of both decisions beyond the decriminalization of abortion by Mexican federal and state legislatures. The paper also examines the scope and limitations of these rulings and identifies the remaining challenges regarding voluntary abortion procedures in Mexico.

The entire article can be read or downloaded here: Article and Abstract Online. 

Spanish translation of Abstract by CLACAI.

OTHER RELEVANT RESOURCES:

The new Mexican decision: Suprema Corte de Justicia de la Nación [Supreme Court], 2023. Review of Constitutional Protection. Amparo en revisión 267/2023. Sept. 6, 2023.Speaker: Justice Ana Margarita Ríos Farjat. Decided in the session of September 6, 2023. Official Press release in Spanish.  Decision in Spanish. 

“Recursos Jurídicos” del RepoCLACAI – For a comprehensive and searchable database of legal resources on abortion care in Latin America, visit the Legal Section of the CLACAI Repository “Recursos Juridicos” online.

Abortion Law Decisions webpages, now updated in English and in Spanish.

Ethical and Legal Issues in Reproductive Health – more than 110 other concise articles are online here.
________________________________________________________________________________________
Contributed by: The International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of this blog, then check your email to confirm the subscription.

“Comparative abortion law” by Rebecca Cook & Bernard Dickens

Congratulations and thanks to Professors Rebecca Cook and Bernard Dickens, whose article on comparative abortion law is the first chapter in the 3rd edition of Elgar Encyclopedia of Comparative Law, edited by Jan M. Smits, Jaakko Husa, Catherine Valcke, and Madalena Narciso (Cheltenham, UK: Elgar Publishing, 2023). It is now freely available online. We are pleased to circulate the following abstract:

Rebecca J. Cook and Bernard M. Dickens, “Abortion,” in Jan M. Smits, Jaakko Husa, Catherine Valcke and Madalena Narciso, eds., Elgar Encyclopedia of Comparative Law, 3rd ed., (Cheltenham, UK: Elgar Publishing, 2023), 3-11. Full text of this chapter is currently online here.

Induced abortion is regulated under restrictive or accommodating provisions of different jurisdictions’ criminal, constitutional and administrative law. Provisions usually fall under discernible patterns. One allows exemptions from prohibition on indications such as danger to a pregnant person’s life or continuing health, pregnancy by rape, or severe fetal impairment. Another permits abortion on request within a specified time and thereafter on specified indications, or before independent fetal viability. An expanding trend is toward decriminalization, regulating abortion without specific criminal penalty as other routine healthcare procedures.

Much can be learned from comparing how courts apply public health, autonomy and equality rationales to interpret constitutions when addressing abortion contests. Courts weigh constitutional values or interests of fetuses, sometimes from conception, against women’s rights, usually upholding rights. Within governing law, health ministries often provide subordinate regulations promoting a better understanding of how abortion laws should apply, for instance to medical (non-surgical) abortion.

In general, comparative abortion law requires microscopic vision to learn how criminal, constitutional and administrative laws are applied in particular national contexts to address the challenges of unwanted pregnancies. It also requires telescopic vision to learn how these laws are diffused, transplanted and received across jurisdictional borders in order to reinforce or disrupt efforts to achieve reproductive justice.

The full text of this article is online here.

RELATED RESOURCES:

“Recursos Jurídicos” del RepoCLACAI – For a comprehensive and searchable database of legal resources on abortion care in Latin America, visit the Legal Section of the CLACAI Repository “Recursos Juridicos” online.

The WHO Abortion Care Guideline: Law and Policy–Past, Present and Future,” by Joanna N. Erdman, in International Journal of Gynecology and Obstetrics, 162.3 (Sept 2023): 1119–1124.   PDF at Wiley Online. 

Abortion Law Decisions webpages, now updated in English and in Spanish.
________________________________________________________________________________________
Contributed by: The International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of this blog, then check your email box to confirm.

REPROHEALTHLAW Updates – 2023-24

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

[Argentina, preventable maternal death,”obstetric violence”] Britez Arce et. al. v. Argentina. (Inter-American Court of Human Rights, November 16, 2022). Decision in English. Decision in Spanish. Press Release Jan 18, 2023. Comment by CRR. [Earlier: Merits report by the Inter-American Commission on Human Rights (Report 236/19, Case 13.002. Report in English-download.)

[Bolivia, rape of a minor, revictimization] Losado v Bolivia (Inter-American Court of Human Rights, November 18, 2022) English press release Jan 19, 2023 Summary in Spanish. Decision in Spanish. The Court held Bolivia responsible for gender and child discrimination, and revictimization of an adolescent victim of sexual violence during the judicial process.

[Colombia, abortion decriminalized] Sentencia C-055-22.  Expediente D-13.956. Demanda de inconstitucionalidad contra el artículo 122 de la Ley 599 del 2000. (Constitutional Court of Colombia, February 21, 2022). Decision in Spanish (414 pages).  Backup decision in Spanish.  Unofficial English translation. 27-page Spanish press release.  English summary of Press Release.  1-page Spanish press release. [Abortion is decriminalized within 24 weeks of gestation, and thereafter permitted on specified grounds.] 

[El Salvador, abortion, anencephaly] Beatriz v. El Salvador, Case 13-378, Report No. 09/20, Inter-Am. C.H.R. (2020) (Inter-American Commission of Human Rights, January 5, 2022): Report in Spanish. Case Summary in Spanish.  Press release in English. [Woman with lupus and kidney failure denied abortion for fetus with anencephaly.] Inter-American Court of Human Rights held hearings in March 2023.

France made abortion a fundamental constitutional right. March 4, 2024. Parliamentarians voted to revise the country’s 1958 constitution to enshrine women’s “guaranteed freedom” to abort. News report in English.

[Mexico, Abortion decriminalized], Suprema Corte de Justicia de la Nación [Supreme Court], 2023..Review of Constitutional Protection. Amparo en revisión 267/2023. Sept. 6, 2023. Speaker: Justice Ana Margarita Ríos Farjat. Decided September 6, 2023. Official Press release in Spanish.   [Abortion is decriminalized throughout Mexico.]

[Northern Ireland, UN CEDAW] Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, (2018) U.N. Doc. CEDAW/C/OP.8/GBR/1  Original CEDAW 2018 report.  Comments by Clare Pierson. [abortion, a crime in Northern Ireland following sections 58 and 59 of the Offences Against Persons Act 1861, was legalized in 2020.]
—Follow-up report submitted by the United Kingdom of Great Britain and Northern Ireland, 16 January 2023, published March 14, 2023 as CEDAW/C/OP.*/GBR/3/Add.1.  Followup report in different formats, English, French and Spanish.  [Among other reforms, Northern Ireland established a Gender Equality Strategy Expert Advisory Panel whose Report of December 2020 is online here]. 

[Peru, UN Committee on the Rights of the Child] Camila v. Peru, Communication No. 136/2021.U.N. Doc CRC/C/93/D/136/2021 (June 13, 2023) Decision online in Spanish, Arabic and Russian.  Decision in English (May 25, 2023, *unofficial draft). Case note by Godfrey Kangaude.  [Child raped by her father. Ruling: Peru violated child rape victim’s rights by failing to guarantee access to abortion and criminally prosecuting her for self-abortion.]

[Peru, child marriage] Ley N.º 31945 to prohibit and eliminate any possibility of marriage with minors under the age of 18 was promulgated on 25 November 2023. Prior to the new legislation, Article 42 of Peru’s Civil Code permitted adolescents to marry from the age of 14 under certain conditions, with consent from at least one parent, despite the minimum legal age of marriage being 18 years for girls and boys. Context in English.

[Poland, ECtHR ruled against fetal abnormality abortion ban] M.L. v. POLAND (Application no. 40119/21) (European Court of Human Rights, December 14, 2023) [Woman forced to travel for abortion of malformed fetus. Court found violation of ECHR Article 8 (right to respect for private and family life) of the ECHR, following a 2020 Constitutional Court ban on legal abortion in case of foetal abnormalities. Press release. Decision of 14 Dec 2023.

[Poland, fetal abnormality risk, inadmissible] A.M. and others v. Poland (application no. 4188/21, 4957/21, 5014/21,5523/21, 5876/21, 6114/21, 6217/21, 8857/21) (European Court of Human Rights, May 16, 2023) ruled these 8 cases inadmissible because each applicant could not claim to be a victim of a violation of the ECHR owing to risk of a future violation. Press Release. Decision of 16 May 2023.

[Spain, access to abortion information] Tribunal Supremo de España, Sala Tercera, de lo Contencioso-administrativo, Sección 4ª, S 1231/2022, 3 Oct. 2022 (Rec. 6147/2021)  Decision in Spanish.  Spanish backup copy.  Decision in English.  English backup copy. [The Government cannot block public access to a website containing information or opinions without judicial authorization.  This includes the site of Women on Web, which discusses access to abortion.

[Turkey, abortion for rape victim], [Case of] R.G. [GK], B. No: 2017/31619, 23/7/2020,.July 23, 2020. (Grand Chamber of the Turkish Constitutional Court)   27-page decision in Turkish. Backup copy. Official press release in English. Backup copy.  Comment  in English on IACL/AIDC Blog. Article in English from a Turkish Journal of Constitutional Law  [procrastination after rape victim applied for abortion violated the right to protect one’s corporeal and spiritual existence (provided under Article 17 of Turkish Constitution.

[UK – challenge to fetal abnormality ground for abortion] R (on the Application of Crowter and Ors) v Secretary of State for Health and Social Care EWCA Civ 1559 Case No: CA-2021-000314 (UK Court of Appeal (Civil Division) London, 25 Nov., 2022, Judgment summary. Decision online.  [UK legislation allowing abortion for substantial risk of a born child’s serious handicap (such as Down syndrome) is not incompatible with disabled persons’ human rights to respect for their private and family life and to nondiscrimination.] This was an appeal of [2021] EWHC 2536 (Admin) Case No. CO/2066/2020 (High Court of Justice, Queen’s Bench Division, London) Sept 23, 2021.  Judgment and summary.    [fetus has no established rights under the European Convention on Human Rights (ECHR), so UK abortion law allowing legal abortions in cases of severe fetal abnormalities is compatible with ECHR.]

[Venezuela, obstetric violence] Inter-American Court of Human Rights – Case of Rodríguez Pacheco et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 1, 2023. Series C No. 504. Press release in English. Official Summary in Spanish. 82-page judgment in Spanish. Download partial dissent by Judge Sierra Porto. Download: partial dissent by Judge Pérez Goldberg. The Court ruled that Venezuela is responsible for deficiencies in Judicial Proceedings on a Complaint of acts of obstetric violence and medical malpractice that took place in a private hospital.

SCHOLARSHIP

[comparative abortion law] Rebecca J. Cook and Bernard M. Dickens, “Abortion,” in Jan M. Smits, Jaakko Husa, Catherine Valcke and Madalena Narciso, eds., Elgar Encyclopedia of Comparative Law, 3rd ed., (Cheltenham, UK: Elgar Publishing, 2023), 3-11. Abstract online here. Full text and PDF online

[abortion law, Colombia] “The new Colombian law on abortion,” by Isabel C Jaramillo Sierra, International Journal of Gynecology and Obstetrics 160.1 (January 2023): 345-350.  Abstract and Article. 

[abortion law and policy] “Self managed abortion: aligning law and policy with medical evidence,” by Patty Skuster, Heidi Moseson and Jamila Perritt, in International Journal of Gynecology and Obstetrics 160.2 (February 2023): 720-725. Abstract and Article.  

[abortion law and policy, guideline] “The WHO Abortion Care Guideline: Law and Policy–Past, Present and Future,” by Joanna N. Erdman, in International Journal of Gynecology and Obstetrics, 162.3 (Sept 2023): 1119–1124. Abstract and Article.  WHO Abortion Care guideline, 2022.

[adolescents, Africa] “Integrating child rights standards in contraceptive and abortion care for minors in Africa,” by Godfrey Dalitso Kangaude, Catriona Macleod, Ernestina Coast and Tamara Fetters, International Journal of Gynecology & Obstetrics 159.3 (December 2022): 998-1004.   Abstract and Article.

[Africa, Zimbabwe, rewrite abortion decision, gender equality] Charles Ngwena and Rebecca J. Cook, “Restoring Mai Mapingure’s Equal Citizenship,” In: Rebecca J. Cook, ed., Frontiers of Gender Equality: Transnational Legal Perspectives (University of Pennsylvania Press, 2023). Abstract online.  Book available here. Introduction to the book (by Rebecca Cook).

[gender equality, health, CEDAW GR 24] “Gender Equality in Health Care: Reenvisioning CEDAW General Recommendation 24,” by Joanna N. Erdman and Mariana Prandini Assis, in Frontiers of Gender Equality: Transnational Legal Perspectives, ed. Rebecca J. Cook (University of Pennsylvania Press, 2023). Abstract online in English. Portuguese translation of this chapter. Book available here. Introduction to the book (by Rebecca Cook).

[gender equality] Rebecca J. Cook, “Many Paths to Gender Equality,” Introduction to: Frontiers of Gender Equality: Transnational Legal Perspectives (University of Pennsylvania Press, 2023). Introduction online.

[infertility] “”Human Rights Approaches to Reducing Infertility,” by Payal K. Shah and Jaime M. Gher, in International Journal of Gynecology and Obstetrics.162.1 (July 2023): 368–374.  Abstract and Article. 

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog. View or subscribe.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here.

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Contributed by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Colombia’s new law on abortion

Congratulations and thanks to Isabel C Jaramillo Sierra, a Professor of Law at the Universidad de los Andes in Bogotá. As she explains in “The new Colombian law on abortion“ published in the Ethical and Legal Issues in Reproductive Health section of the International Journal of Gynecology and Obstetrics, the new law authorizes abortions on request up to week twenty-four and on an indications model for the remaining weeks of pregnancy. We are pleased to circulate the following abstract:

“The new Colombian law on abortion,” by Isabel C Jaramillo Sierra, International Journal of Gynecology and Obstetrics 160.1 (January 2023): 345-350.  PDF at Wiley Online.  Spanish translation of abstract by CLACAI.

Abstract: On February 21, 2022, the Colombian Constitutional Court decided that the existing regulation of abortion was unconstitutional and repealed it (Sentencia C-055/2022). The new abortion law, as per the Court’s decision, considers the voluntary interruption of a pregnancy a crime only when it happens after week twenty-four and does not fall under the health, rape or malformation indications developed through precedent from 2006 to 2022. The decision is generally binding and of immediate application. The decision’s rationale builds on the right to health, substantive equality, and freedom of conscience. It acknowledges severe restrictions in access to abortion faced by Colombian women and the costs these restrictions have on their lives. It also recognizes that the indications model forces women to obtain permission from medical doctors to access abortion, and thus fails to recognize women’s freedom of conscience.

Keywords: Colombian Constitutional Law; Colombia judgment Sentencia C-055/2022; Right to health; Right to equality; Freedom of conscience; Criminal law as last resort; Reproductive health

RELATED RESOURCES:

The decision: Corte Constitucional [Constitutional Court] February 21, 2022, Sentencia C-055-22.  Expediente D-13.956. Demanda de inconstitucionalidad contra el artículo 122 de la Ley 599 del 2000. Decision in Spanish (414 pages).  Backup decision in Spanish.  Unofficial English translation. 27-page Spanish press release.  English summary of Press Release.  1-page Spanish press release.. [Abortion is decriminalized within 24 weeks of gestation, and thereafter permitted on specified grounds.] 

Abortion Law Decisions webpages, now updated in English and in Spanish.

“Recursos Jurídicos” del RepoCLACAI – For a comprehensive and searchable database of legal resources on abortion care in Latin America, visit the Legal Section of the CLACAI Repository “Recursos Juridicos” online.

Ethical and Legal Issues in Reproductive Health – more than 110 other concise articles are online here.
________________________________________________________________________________________
Contributed by: The International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of this blog, then check your email to confirm the subscription.

Argentina: Regulating Conscientious Objection

Congratulations to Agustina Ramón Michel, Stephanie Kung, Alyse López-Salm, and Sonia Ariza Navarrete for their 2021 publication in the Health and Human Rights Journal about a CEDES and Ipas report in Spanish about conscientious objectors in Argentina. We are pleased to circulate abstracts for both publications:

“Regulating Conscientious Objection to Legal Abortion in Argentina: Taking into Consideration Its Uses and Consequences,” by Agustina Ramón Michel, Stephanie Kung, Alyse López-Salm, and Sonia Ariza Navarrete, Health and Human Rights Journal 22.2 (Dec 2020): 271 – 384. Abstract and article.

Abstract: Claims of conscientious objection (CO) have expanded in the health care field, particularly in relation to abortion services. In practice, CO is being used in ways beyond those originally imagined by liberalism, creating a number of barriers to abortion access. In Argentina, current CO regulation is lacking and insufficient. This issue was especially evident in the country’s 2018 legislative debate on abortion law reform, during which CO took center stage. This paper presents a mixed-method study conducted in Argentina on the uses of CO in health facilities providing legal abortion services, with the goal of proposing specific regulatory language to address CO based not only on legal standards but also on empirical findings regarding CO in everyday reproductive health services. The research includes a review of literature and comparative law, a survey answered by 269 health professionals, and 11 in-depth interviews with stakeholders. The results from our survey and interviews indicate that Argentine health professionals who use CO to deny abortion are motivated by a combination of political, social, and personal factors, including a fear of stigmatization and potential legal issues. Furthermore, we find that the preeminent consequences of CO are delays in abortion services and conflicts within the health care team. The findings of this research allowed us to propose specific regulatory recommendations on CO, including limits and obligations, and suggestions for government and health system leaders.

Una vuelta de tuerca a la objeción de conciencia: Una propuesta regulatoria a partir de las prácticas del aborto legal en Argentina, por Sonia Ariza Navarrete & Agustina Ramón Michel, (Buenos Aires: CEDES e Ipas, 2019.  Informe en espanol.

Sumario: En esta publicación sobre la objeción de conciencia (OC) a la ILE en Argentina, desarrollado por Ipas y la Red de Acceso al Aborto Seguro, Argentina (REDAAS), presentamos una propuesta para regular la OC en el marco de una política pública. Esto lo hacemos de manera empíricamente informada –en particular, relevando las formas que adquiere la OC, y las opiniones de profesionales de la salud sobre las causas e impacto a través de una encuesta y una serie de entrevistas– y con un encuadre conceptual que pone en juego anhelos normativos, necesidades concretas, experiencias cotidianas tanto de los equipos de salud como de las autoridades sanitarias, así como las características estructurales de la formación médica, las condiciones institucionales de los servicios de salud y el ambiente sociopolítico.

OTHER RELEVANT RESOURCES

The first global map on norms regarding conscientious objection in healthcare, by Agustina Ramón Michel (coordinator) and Dana Repka (CEDES / REDAAS), with support from Ipas and the ELA team. The map is an exercise in comparative law which houses, describes and analyzes constitutional, legal, and regulatory standards regarding CO in healthcare of 180 of the world’s countries, and includes the most relevant law cases in national, regional, and international Human Rights courts. This interactive map is searchable by categories and multiple variables, which makes it easier to do a comparative study of the regulations and analysis of specific regulatory aspects. Updated December 15, 2022: Global Map of Norms re Conscientious Objection.

“Conscientious Objection and the Duty to Refer,” by Bernard M. Dickens, International Journal of Gynecology and Obstetrics 2021; 155: 556-560. PDF at Wiley Online.  Submitted Text at SSRN.

Conscientious Objection / The Right to Conscience, an annotated bibliography, updated Feb. 15, 2021 Conscience Bibiography.

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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – Autumn 2021

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS
ECUADOR Constitutional Court orders decriminalization of abortion in cases of rape. Corte Constitucional, Acción Pública de Inconstitucionalidad, Expediente No. 34-19-IN/21, Decision of April 28, 2021.  Summary in Spanish.  Decision in Spanish.  News report in English.

MALAWI: High Court rejects girl’s application for judicial review of oral abortion refusal. The State (On the Application by HM (Guardian) on behalf of CM (Minor) vs The Hospital Director of Queen Elizabeth Central Hospital & The Minister of Health: Judicial Review Cause Number 03 of 2021 (unreported) (High Court of Malawi, Zomba District Registry) Decision of 15 June 2021.   (Download:) Legal Brief by Lewis Bande and Godfrey Kangaude.  Overview of their brief.

MEXICO: Supreme Court rules that criminalizing abortion is unconstitutional, Sept 7, 2021. Action of unconstitutionality 148/2017, promoted by the Office of the Attorney General of the Republic against the Legislative and Executive Powers of Coahuila, demanding the invalidity of articles 195, 196 and 224, section II of the Penal Code of the State of Coahuila de Zaragoza, contained in Decree 990, published in the local Official Newspaper on October 27, 2017 News report. Press release in Spanish.

NEW ZEALAND: NZ Health Professionals’ Alliance v Attorney-General, [2021] NZHC 2510 (New Zealand High Court)   Decision of September 23, 2021.   Commentary on decision.  News report. The Court upholds sections of the Contraception, Sterilisation, and Abortion Act 1977 (‘CSAA’), amended in the Abortion Legislation Act 2020, [conscientious objection includes duty of effective referral; and employers must accommodate conscientious objection unless doing so would cause unreasonable disruption.]

SAN MARINO: Referendum, Sept 24, 2021, voted to legalize abortion within 12 weeks’ gestation. BBC news report.

SCHOLARSHIP

[abortion laws] “Legal Epidemiology for a Clearer Understanding of Abortion Laws and their Impact,” by Patty Skuster, Temple Law Review 92.4 (Summer 2020): 917-929. Abstract and article.

[abortion, Ireland, COVID-19, remote consultation] “Early abortion care during the COVID-19 public health emergency in Ireland: implications for law, policy and service delivery” by Allison Spillane and Maeve Taylor, International Journal of Gynecology and Obstetrics 2021;154: 379–384.  PDF at Wiley online, Free access.

[abortion law, telemedicine] Early Medical Abortion, Equality of Access, and the Telemedical Imperative, by Jordan A. Parsons and Elizabeth Chloe Romanis (Oxford University Press, 2021) Book abstract.

[abortion policy, Amnesty] “Amnesty International’s Updated Policy on Abortion: A Resource for Medical Providers,” by Rada Tzaneva and Jaime Todd-Gher, International Journal of Gynecology and Obstetrics 153.2 (May 2021): 363-369. PDF at Wiley online, Free access.

[Africa] Advancing Sexual and Reproductive Health and Rights in Africa: Constraints and Opportunities, ed. Ebenezer Durojaye, Grace Mirugi-Mukundi, and Charles Ngwena. (Routledge, 2021) Abstract and Table of Contents. Open Access to entire book.

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog. View or subscribe.

VIDEO RESOURCE
“Shaping the Future of Abortion,” in the Oxford Human Rights Hub Documentary Series. The second episode of Shaping the Future of Sexual and Reproductive Health Rights, explores the role of human rights law in advocacy, examining successful legal strategies used in South Africa, Brazil, Mexico, Kenya and Poland.  Second episode online.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Ireland: Early abortion care during COVID-19

Congratulations and thanks to co-authors Alison Spillane, Maeve Taylor, Caitriona Henchion, Róisín Venables, and Catherine Conlon of the Irish Family Planning Association in Dublin, whose timely article was recently published in the International Journal of Gynecology and Obstetrics as part of its Ethical and Legal Issues in Reproductive Health series. Professor Spillane also teaches at the School of Social Work and Social Policy, in Trinity College, Dublin. The article explains that COVID-19 precipitated the introduction of remote consultation for early abortion in Ireland. This paper explores what this may mean for law, policy and service delivery. We are pleased to circulate the following abstract:

“Early abortion care during the COVID-19 public health emergency in Ireland: implications for law, policy and service delivery” by Alison Spillane, Maeve Taylor, Caitriona Henchion, Róisín Venables, and Catherine Conlon, International Journal of Gynecology and Obstetrics 2021;154: 379–384.  PDF at Wiley online, Free access.

Abstract: Early abortion care became available in Ireland in January 2019. Service delivery involves two consultations with a medical practitioner, separated by a mandatory 3-day waiting period. The Model of Care for termination of pregnancy initially required in-person visits. The onset of the COVID-19 pandemic necessitated significant reductions in in-person interactions in healthcare. A revised Model of Care for termination of pregnancy, issued for the duration of the pandemic, permits delivery of early abortion care by remote consultation. Significantly, this was introduced without amending the 2018 abortion law. The pandemic precipitated a rapid development in the delivery of abortion care that was not anticipated at the time of abortion law reform only 18 months earlier. We outline the work undertaken to maintain access to abortion care in early pregnancy through the lens of a single community-level provider
and explore what these developments may mean for abortion law, policy, and service delivery.

RELATED RESOURCES:

“Legal and Policy Responses to the Delivery of Abortion Care During COVID-19,” by Elizabeth Chloe Romanis & Jordan A Parsons. International Journal of Gynecology and Obstetrics 151.3 (Dec. 2020): 479-486  PDF at Wiley online. Submitted Text at SSRN.

Ethical and Legal Issues in Reproductive Health – 100+ other concise articles are online here.

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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Malawi’s first abortion ruling sheds light on law and hospital norms

Many thanks to legal scholars Lewis Bande, Ph.D, and Godfrey Kangaude, LL.D., for submitting a learned commentary on the High Court of Malawi’s first ever “Ruling on a judicial review application to access safe abortion,” decided June 15, 2021. Their 6-page summary and analysis of this decision has just been published at this link, among the online updates to the third volume of case summaries, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. Here is a brief overview of their comments on the following case:

The State (On the Application by HM (Guardian) on behalf of CM (Minor) vs The Hospital Director of Queen Elizabeth Central Hospital & The Minister of Health: Judicial Review Cause Number 03 of 2021 (unreported) (High Court of Malawi, Zomba District Registry) Decision of 15 June 2021. Decision on Google drive. (Download:) Legal Brief by Lewis Bande and Godfrey Kangaude. 

The case centres upon a minor known as “C.M.,” a 15-year-old girl who had been “defiled,” impregnated and abandoned by a married man.  She claimed to have been refused termination of pregnancy at the Queen Elizabeth Central Hospital’s facility for survivors of sexual abuse. There, healthcare providers told her that abortion is illegal in Malawi.  From legal counsel, the girl’s family later learned that abortion is indeed illegal under the antiquated Malawi Penal Code of 1930, but prosecution can be avoided under Section 243, which provides:

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.

Healthcare providers routinely interpret this Section of the law restrictively, excluding victims of defilement or sexual assault. In this context, abortion requests and refusals normally happen orally and are not usually recorded in medical records.

The Court’s Ruling: The Court rejected the application for judicial review on the sole ground that there was no evidence that the First Defendant, as director of a public hospital, was responsible for any “decision” that could be judicially reviewed. As Bande and Kangaude observe, the Court cannot be faulted for this ruling. However, the Court proceeded to speculate that this application would probably have failed on other grounds that seem debatable. The Court’s ruling, they write, shows room for further litigation on the interpretation of the current law for girls and women who have been sexually assaulted.  In the ruling, the Court used language that suggests that it recognizes that preservation of a woman’s life entails preserving her mental and physical health. This seems progressive on the part of Court, as it conforms with the consensus in the human rights discourse that the rights to health and life are closely related.   

Significance: Although permission for judicial review was denied, this ruling is a milestone, marking the very first instance that the High Court of Malawi has acknowledged and discussed the position that abortion can be lawfully performed in Malawi. The ruling also shows that defiled or raped Malawian girls and women are being excluded from safe abortion, and they are forced to keep pregnancies that are a result of sexual assault because the Section 243 exception is interpreted restrictively by health providers. The Second Defendant in this case was, appropriately, the Minister of Health, because decisions to refuse terminations of pregnancy would be based on policies for which the Health Minister is responsible.

The Malawi Law Commission’s 2015 review of the colonial abortion law proposed liberal changes to the law which, if implemented, would eventually expand access to safe abortion.[1] Rather than waiting for law reform, the Ministry of Health should immediately provide defiled girls and rape victims with access to safe abortion by clarifying the application of the existing abortion law. In the Health Ministry’s current Standards and Guidelines for Post Abortion Care (2020)[3], section 1.2, it remains unclear whether victims of sexual violence can access safe terminations legally. Professional guidelines should clarify that any girl or woman who has been raped or defiled should have an option to terminate the pregnancy, and without being subjected to burdensome requirements such as proving severe depression or suicidal ideation. Meanwhile, health advocates should continue to champion law reforms that respect Malawi’s constitutional and international obligations toward girls and women.

Related Resources:

[1]   Malawi Law Commission. Report of the Law Commission on the review of the law on abortion (Penal Code CAP.7:01 of the Laws of Malawi). Lilongwe: Malawi Law Commission; 2015. Report online.

 [2] See also: Godfrey Dalitso Kangaude and Chisale Mhango, “The Duty to make abortion law transparent: A Malawi case study” International Journal of Gynecology and Obstetrics 143.3 (Dec. 2018): 409–413, Published Version at IJGO.  Submitted text online at SSRN.

[3] Ministry of Health, Malawi, Standards and Guidelines for Post Abortion Care 2020.   43-page document. PAC Guidelines.

(Download:) Legal Brief by Lewis Bande and Godfrey Kangaude. 

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Compiled by the Coordinator of International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.